At the Bar September 2009

At The Bar

September 2009

Fast Track List and Private Mediators to Speed Civil Cases A new Fast Track List and the use of private mediators for mediations in High Court civil cases are to be trialled as part of moves to speed up court processes. Justice Minister Simon Power and Courts Minister Georgina te HeuHeu announced in July that the Auckland High Court would introduce a pilot scheme which would see private mediators undertaking court-ordered mediations in some civil disputes when the parties agreed to this. The ministers said that the pilot would commence in November 2009 and would see the equivalent of 50 day-long mediations carried out. “Currently, mediation is carried out by Associate Judges, and though there has been a high success rate with this, Associate Judges are now spending large amounts of time mediating, rather than on cases that require judicial attention,” said the ministers. “Reducing the number of full hearings and freeing up judicial time for other matters should lead to faster resolution of disputes, which will be cheaper for the parties and court.” Mr Power and Ms te HeuHeu said that a panel of 12 to 15 mediators would be established. Members, who would be selected by the Chief High Court Judge, would be experienced legal practitioners who were also qualified and experienced in mediation. They would have no judicial status, powers or immunities. High Court Judges or Associate Judges would decide whether disputes should be referred to mediation by private mediators. The agreement of the parties would then be required to do this. In essence, the parties could either elect to have a judicial settlement conference with an Associate Judge or a mediation with a private mediator funded by the Ministry of Justice. The ministers said that the details of the processes to be followed once mediations were concluded were still being worked through with the judiciary. Any court orders or judgments to be issued at the end of successful mediations would be issued by the High Court or Associate Judge concerned. Mr Power and Ms te HeuHeu said that the Ministry of Justice had budgeted $150,000 to run the pilot. That would enable the equivalent of 50 day-long mediations to take place, but the actual number would depend on the length

of each mediation. It was expected that a number would last for less than a full day, meaning that more than 50 could be accommodated. The intention of the pilot was to establish whether using private mediators resulted in increased throughout and/or reduced waiting times. The ministers said that a review of the scheme would take place once the pilot had been completed. If the trial was regarded as successful, it could be extended to other parts of the country. There was potential for significant time savings and more efficient operation of the justice system. Ms te HeuHeu in June announced a number of initiatives to tackle court waiting lists. She said that there was no single solution to increasing court workloads. Increasing resources to meet demand was only a partial solution when, for example, criminal cases in Auckland alone were forecast to rise by seven per cent a year. However, Ms te HeuHeu said that a number of initiatives were being taken to address workloads in the shorter term. These included the extended court operating hours’ pilot which had run in Auckland in June, and the additional courtrooms which would be available in the Auckland District Court from October 2010. Construction was at present underway to locate a civil courthouse in the Auckland central business district, thereby freeing up space in the District Court building. continued over...

INSIDE THIS ISSUE Pg 1 - Fast Track List and Private Mediators to Speed Civil Cases Pg 3 - Sweeping Changes Brought by New District Court Rules Pg 4 - The Art of Written Persuasion Pg 6 - Negotiation/Mediation: “Never Leave Money on the Table” Pg 7 - Demystifying the Regulators - Tips for Assisting Clients Pg 9 - Bar Chat Pg 10 - What Members Need to Know Pg 11 - Upcoming Conferences & Seminars Pg 13 - NZBA Council Summary of Meeting Minutes Pg 15 - Advocacy and Courtroom Practice - The Duties of Counsel Pg 16 - Annual Conference, 11-13 September 2009

Fast Track List and Private Mediators to Speed Civil Cases continued Ms te HeuHeu said that longer-term initiatives would include rolling out a National Transcription Service to speed up the taking of evidence. Legislation to enable more use of audio-visual links and an electronic operating model for courts would also be progressed. An operating model with “more flexibility and scalability” would be developed for Auckland. The minister said that, although many of the initiatives related to Auckland, they had the potential to benefit courts around New Zealand in the longer term. In another move, Chief High Court Judge Tony Randerson on 30 June 2009 released a High Court Fast Track Practice Note. The note said that a Fast Track List would be established for all civil proceedings other than – • insolvency work and cases under section 26I of the Judicature Act 1908 normally undertaken by Associate Judges • civil appeals and judicial review

EDITOR Catriona MacLennan Tel: 0064 9 378 0964 Email: catmac@orcon.net.nz EDITORIAL COMMITTEE Miriam Dean QC Convener Tel: 0064 9 377 8959 Email: miriam@barrists.co.nz Monique Pearson Tel: 0064 9 303 4515 Email: nzbar@nzbar.org.nz Graham Kohler Tel: 0064 9 307 9816 Email: kohler@shortlandchambers.co.nz John Matthews Tel: 0064 9 409 2010 Email: jgmatthews@xtra.co.nz DESIGN & PRINT Amanda Brett, Kinetech Creative Tel: 0064 9 576 8393 Email: amanda@kinetechcreative.co.nz New Zealand Bar Association Tel: 0064 9 303 4515 Fax: 0064 9 303 4516 Email: nzbar@nzbar.org.nz Web: www. nzbar.org.nz P O Box 631 Auckland 1140 2

• originating applications under part 19 of the High Court Rules. The note said that the list would operate initially in the Auckland, Wellington and Christchurch registries, and within the framework of the existing High Court Rules. The ability of parties to seek priority fixtures under Rule 7.13 of the High Court Rules, or to seek entry onto the Commercial List would not be affected by the pilot. The Practice Note would commence on 7 September 2009, and would be reviewed after 18 months. At that point, changes to the High Court Rules might be considered. The note said that the most suitable proceedings for the list would be those involving confined issues which did not require extensive interlocutory applications. The willingness of the parties and counsel to accept tight timeframes and to reduce issues and interlocutory steps to a minimum would be requirements. Proceedings involving multiple parties or third parties, or expected to occupy more than five sitting days, were unlikely to be suitable, although longer cases

could be considered. The consent of the parties would be required before an order transferring a case to the list would be made. The note said that transfer to the list would be initiated by a memorandum filed by one or both of the parties, or at the instance of a Judge or Associate Judge. A date would be allocated for a fast track case management conference not earlier than 20 working days from the date of the transfer, or sooner if urgency required it. The lawyers for each party would be required to confer and file a joint memorandum two clear working days prior to the conference outlining the issues and facts in dispute, the proposed timetable and how the evidence was to be given, a timetable, a fixture time estimate, and any further directions sought.

Ms te HeuHeu said that longer-term initiatives would include rolling out a National Transcription Service to speed up the taking of evidence. Legislation to enable more use of audio-visual links and an electronic operating model for courts would also be progressed. The senior lawyers for each party would be required to attend the case management conference, as well as a pre-trial conference approximately 15 working days prior to the scheduled trial date. Lawyers for each party would confer and file a joint memorandum two clear working days before the conference setting out their positions in relation to outstanding matters or applications. Judges presiding over fast track trials would be required to use their best endeavours to deliver prompt judgments.

Sweeping Changes Brought by New District Court Rules Counsel appearing in District Court civil cases will be required to be familiar with major procedural changes as well as honing their judicial settlement conference skills in the run-up to 1 November 2009 when new District Court Rules take effect. The rules will usher in sweeping changes expected to result in the speedier progression of cases, as well as making proceedings more costeffective. The changes come at a time of increasing concern about delays and high costs in civil cases. Attorney-General Chris Finlayson said in a May speech that there was too much delay in the civil justice system, and that the cost of litigation was too great. He described delay as both a form and a cause of injustice, and said that options for reform included changes to the law relating to discovery, a statutory wasted costs regime to sanction lawyers, improving the civil legal aid system, and legislation to reform the law relating to limitation. The New Zealand Bar Association and the Legal Research Foundation in February 2008 organised a seminar titled Civil Litigation in Crisis – What Crisis? Judges from the High Court and Court of Appeal, Queen’s Counsel, other practitioners, consumers and international speakers addressed the conference, highlighting concerns about delays, costs and lack of access to justice in the civil litigation system. A further seminar to discuss proposals for improving processes in civil cases has been organised by the association and the foundation and will take place in Auckland on 24 September 2009. Under the new District Court Rules, judicial settlement conferences will become the norm in civil matters, with more than two-thirds of cases expected to be settled either prior to, or at, these conferences. Summary judgment will virtually vanish, and witness actions are also likely to decline. Part 2 of the new rules sets out the general procedure for civil claims. Rule 2.10 requires plaintiffs to begin proceedings by filing notices of claims and serving them on each defendant.

The notices must give a succinct description of the facts justifying the plaintiff’s claim, contain a signed statement verifying the truth of the facts, and state the relief sought. Defendants are required to complete and serve responses on plaintiffs within 30 working days. Responses must admit the claim and immediately pay or offer an alternative remedy, deny the claim, or partially admit and partially deny it. If the claim is challenged, details of the defendant’s version of the facts must be concisely stated. Plaintiffs wishing to pursue claims after receiving a defendant’s response must complete information capsules and serve them on the defendant within 30 working days. Information capsules are designed to inform the defendant of the essential nature of the plaintiff’s case, and disclose the information on which the plaintiff intends to rely. They must rebut defences by identifying and addressing the essential facts in dispute, as well as explaining why any offer made by the defendant has been rejected. The information capsule must also list the witnesses the plaintiff intends to call, and include “will say” statements for each witness. The essential documents supporting the plaintiff’s claim are required to be specified, and the contents of the capsule must be verified on oath or by affirmation. Defendants then have 30 working days to complete and serve their own information capsules. Rule 2.14(4) provides that a plaintiff’s claim comes to an end if he or she does not serve the information capsule within 30 working days. Defendants who fail to serve their information capsules will find that the plaintiff is entitled to proceed to judgment by default or judgment on formal proof. Rule 2.7 provides that plaintiffs may apply to the court for orders granting leave to proceed by way of statements of claim, but in future this will be an exceptional process. In deciding whether or not to grant leave, the court will take into account factors such as the amount of money involved, the importance of the case, complexity,

urgency and the financial position of each party. Rule 2.40 sets out the claim allocation procedure. Either the court or a registrar will decide whether a claim should be allocated a short trial, a simplified trial or a full trial. In deciding which process is appropriate, the factors to be taken into account include the number of parties, complexity, the amount at stake, proportionality, and party requests. Short trials are intended for claims which can proceed to hearing quickly, involve relatively uncomplicated issues

A further seminar to discuss proposals for improving processes in civil cases has been organised by the New Zealand Bar Association and the Legal Research Foundation and will take place in Auckland on 24 September 2009. or modest sums, and for which trial time is not likely to exceed a day. The only pre-hearing steps permitted are those set out in Rule 2.44(2), and the only evidential statements required to be produced are the “will say” statements. Oral evidence is allowed, no bundles of documents are required, and there is no judicial settlement conference. The total time for the presentation of a party’s case must not exceed 40 minutes for examination of each witness, 20 minutes for crossexamination, 10 minutes for reexamination, and 30 minutes for continued over...

Sweeping Changes Brought by New District Court Rules continued submissions. However, the court has power to extend those time limits if there are good reasons for doing so. Parties under Rule 2.46 may apply for review of a decision to allocate a short trial. Rules 2.47 and 2.48 deal with judicial settlement conferences for simplified and full trials, and interlocutory matters. Rule 2.47 states that the conferences must be convened by judges and held in chambers. A judge who convenes a conference may assist the parties in their negotiations, but must not preside at the trial unless

all parties consent or the only matter for resolution is a question of law. If a judge assisting the parties at a conference is satisfied that the parties are unable to settle the claim or issue, the judge must immediately advise that he or she has formed that view, and the conference becomes a judicial directions conference. The judge is then required to allocate a simplified or a full trial. Rule 2.51 provides for simplified trial disclosure, stating that parties must give copies of documents to

other parties and serve affidavits of evidence-in-chief at least 15 working days before the trial. Witnesses need appear at simplified trials only if parties have served notices to crossexamine, or the judge so requests. Rule 2.53 states that the total time for the presentation of a party’s case at a simplified trial must not exceed 50 minutes for cross-examination of each witness, 10 minutes for reexamination, and 30 minutes for submissions.

The Art of Written Persuasion North American academic Professor James C Raymond was sitting in his university office more than 20 years ago when a phone call was put through to him. The caller had rung the university switchboard and asked to speak to a writing tutor. Professor Raymond picked up the phone to hear the caller ask whether he would come and teach judges how to write. Professor Raymond replied that he did not have legal qualifications and had never even read a judgment. “Perfect,” replied the caller. “We want someone uncontaminated by knowledge of law.” Professor Raymond agreed to go and speak to the judges, and that was the beginning of a career which has taken him all over the world to speak to both judges and lawyers about how to improve their writing. He is blunt about his advice to legal writers keen to improve their performance: write as a good journalist writes. Professor Raymond says that he preferred to read former New York Times writer Linda Greenhouse’s “fabulously concise” reporting of United States’ Supreme Court decisions, rather than the decisions themselves. He advises lawyers and judges to reject claims that journalists dumb writing down.

Instead, they should seek to emulate journalists by writing in a way which would be comprehensible to their literate neighbours. Good journalists, he says, have that skill and it sets a high standard to be able to achieve it. Professor Raymond is president of the International Institute for Legal Writing + Reasoning and Professor Emeritus at the University of Alabama. He has spoken on legal writing and lectured to judges in more than 20 countries, including Canada, Hong Kong, Rwanda, Singapore, China and Papua New Guinea. He has been coming to New Zealand almost every year since 1997 to address judges at the Institute for Judicial Studies. He has also spoken at the New Zealand Bar Association’s conference and seminars organised by the association. In July 2009, he spoke to seminars organised by the association both for junior/ intermediate litigators and for senior practitioners. Asked where judges and lawyers go wrong in their approach to writing, he quotes another American professor’s remark that there are only two things wrong with legal writing: one is its style, and the other is its content. He says that lawyers turn their critical minds to everything in the world but their own traditions. They believe that the law is sanctified by centuries of stare decisis, and not a word can be changed.

Many lawyers, he says, believe that the law is a scientific language, but it is not. Rather, the law deals with language that is fraught with ambiguity and tries to come up with precise conclusions. Judges, for their part, write judgments which are too long, contain information which is irrelevant to the issues, are not wellorganised, and make it hard to find information about the losing party’s argument. Such judgments, he says, are neither “readable nor raidable.” This means that they are not easily digested by people who want to read the entire judgment, as well as making it difficult for people interested only in specific issues to pick those out. Professor Raymond says that he believes that it is important to teach lawyers and judges about good writing because he has come to regard the judiciary as the conscience of society. He describes the legislative branch as the will of society, and says that, ultimately, courts distinguish right from wrong and protect against tyranny. That makes them the most important institutions in society in countries in which there is a truly independent judiciary.

imagine that one is writing it for a person who knows nothing about the facts, without insulting someone who does know the facts. Professor Raymond says that a good exercise is to imagine coming home and speaking to a neighbour who knows nothing about a case. The words that a lawyer or judge would use to explain the case concisely to that neighbour would probably be the best explanation of the case in plain English. He recommends that lawyers preparing submissions should not concentrate all their efforts on seeking to be persuasive. Instead, he suggests, they should look on themselves as being friends of the court trying to assist judges. “It’s almost as though your attitude should be explanatory rather than persuasive: “Your Honour, you’re too busy to write this judgment. Let me help you out. Let me write it, and let me explain what is wrong with the other side’s argument”.” Professor Raymond says that judges are overwhelmed by the mass of material with which they are presented, and good counsel assist

judges in clarifying the issues. “It’s a vast forest of allegations and counter-allegations, and half-truths. The only way to make sense of it is to tell the judge that it boils down to (for example) five points. The judge wants to do right by the litigants, but also doesn’t want to be reversed on appeal. Say to the judge “Let me sort out this mess of material. Let me tell you what is wrong with the other side’s argument so that you can produce a judgment that will withstand appeal”.” Being persuasive, he says, means cutting to the chase and getting right to the point. He says that the last thing counsel should do is to present a judge with additional material to sort out. Such an approach means that, even if the judge does not accept counsel’s argument in a particular case, the judge will remember that counsel was organised and assisted in getting to the point. That will give counsel an advantage at the next appearance before that judge.

James “Catcher” Raymond… a different angle! Enjoying some time out in Russell.

Professor Raymond says that, in considering the contents of judgments and submissions, it is essential to focus on the issues. The key is to examine what it is that is keeping the opposing parties apart. Before judges can reach decisions, they must be absolutely clear about what is it they are being asked to decide. He accordingly recommends an issues-driven approach to writing judgments and opinions. At a minimum, once a judge has decided which party has been unsuccessful, the judgment should identify the issue and state the losing party’s argument and explain what the problem is with it, before setting out why the successful party has won. He says that such an approach will not make the losing party happy, but will mean that he or she understands – and therefore is more likely to accept – the decision. He says that the art of writing a judgment is to

Negotiation/Mediation: “Never Leave Money on the Table” Watching Peter Snell winning the gold medal in the 800 metres’ race at the Rome Olympics in 1960 was the catalyst which first sparked J Anderson Little’s interest in New Zealand. He and his brother were both runners, and Mr Little can still recite the names and details of this country’s most famous runners. The North Carolina litigator and mediator was in New Zealand in August to speak to an NZBA seminar titled Never Leave Money on the Table – Negotiating Monetary Settlements. In an interview with the NZBA newsletter he said that the weakness of the adversarial system was that it did not provide an organised means of having settlement discussions. Typically, what happened was that lawyers went up the court house steps and settled cases at the door of the court. Lawyers in their training received little education about skills for settling disputes, and being the first to raise the prospect of settling was generally taken as an indication that one’s case was weak. However, Mr Little said that the benefits of settlement should not be regarded as relating only to efficiencies in the legal system. More importantly, settlement provided for greater client involvement in the process, speedier resolutions and lower costs. He said that the move to mandatory mediation in civil cases in North Carolina had been led by the Bar Association, which had studied the position between 1983 and 1988. The forerunner of mediation in civil cases was the introduction of a child custody mediation programme, which was approved for state-wide expansion in 1989. A pilot programme of third party mediation in civil cases ran between 1991 and 1995 and was so successful that the state’s four largest districts came on board with the initiative even before it was formally approved as a permanent, state-wide part of the system. Mr Little said that, at the time, lawyers were not familiar with mediation and the concept was truly revolutionary. The North Carolina system now provided for mandatory settlement events. Parties could choose from a range of options, but

mediation was the default process. It was now also used in workers’ compensation cases, administrative law cases and in contested insurance claims. There were currently 1600 certified mediators for the North Carolina court system.

having a broad outline of how the negotiation/mediation might proceed. Lawyers who found themselves becoming aggravated in negotiations or mediations should take that as a warning signal that they needed a plan.

He said that the changes in North Carolina had been achieved by a process involving co-operation between judges and lawyers. He said that he was also strongly in favour of the North Carolina model of the parties paying the mediators themselves, rather than state funding being provided. He recommended that New Zealand follow that model, rather than adopting a system of the state paying for mediators and also stressed the importance of third party-led – rather than judge-led – mediation.

Mr Little said that a thorough case analysis would enable a lawyer to arrive at a “walk away” figure or outcome, which would be based on the lawyer’s knowledge and experience of results in similar cases. The lawyer could try a couple of rounds of discussion based on that premise, and if it was not working the lawyer should develop a plan. This would involve considering the current position – what was being offered by the other side at this point – and evaluating how far away that was from the walk away position. A plan then needed to be developed to move from the current position to the walk away position. This could be done by splitting up the difference between the current and the desired positions into equal figures and starting to move through that range. For example, if the walk away position was $600,000 and $400,000 was being offered at present, the lawyer could plan for 10 moves involving increases of $20,000 each.

Lawyers who found themselves becoming aggravated in negotiations or mediations should take that as a warning signal that they needed a plan. Mr Little said that disputes about money only could be fundamentally different from – and more difficult to settle – than other types of disputes. Claims for money inevitably began with positional bargaining, ended with positional bargaining, and resisted efforts to reframe them into problemsolving experiences. He said that lawyers were not trained in negotiation at law school, and most did not plan negotiations carefully. Instead, they left them somewhat to happenstance. That meant that, when lawyers entered negotiations or mediations, they tended to react to the other side’s actions and statements. Mr Little said that lawyers could help themselves a lot if they planned ahead. This involved considering where to begin and where to end, as well as what would happen in the middle of the negotiation or mediation. He said that this did not necessarily involve developing a plan for every eventuality, but rather

Mr Little said that this approach could appear both mechanical and risky, and lawyers often queried how it could work if the other side did not respond. However, he said that, in practice, it generally resulted in movement. Conversely, by not having a plan, lawyers ended up sending a signal that they were willing to negotiate at the low level proposed by the other side. Mr Little stressed that it was also important to be realistic about the merits of the case and not to set too high a walk away figure. However, if, at the end of the process the lawyer was confident that the client on the worst possible day in court would obtain a better result, then the client should not settle. *The NZBA will be making available for sale copies of the text Mr Little wrote for the American Bar Association – Making Money Talk – How to Mediate Insured Claims and other Monetary Disputes.

Demystifying the Regulators – Tips for Assisting Clients Tips for assisting clients facing investigation by regulatory agencies were discussed at an ADLS Inc seminar called Demystifying the Regulators. Presentations from regulatory agency staff were followed by defence counsel perspectives and suggestions. Serious Fraud Office chief prosecutor, Anita Killeen, and assistant director, Gib Beattie, explained the criteria employed by the office in deciding whether or not a matter was one in which it should become involved. They noted that lawyers might come into contact with the office when representing clients in a number of contexts. These included clients who were complainants or victims in relation to serious financial crimes, clients who were witnesses or suspects in investigations, or clients who had been charged with offences. Ms Killeen and Mr Beattie noted that the office had a range of powers to require the production of documents and to compel people to answer questions. Section 5 of the Serious Fraud Office Act 1990 gave the office’s director the power to require the production of documents and to compel people to answer questions about the whereabouts of other documents which might be relevant to an investigation. Section 6 authorised the director to apply to a judge for a search warrant on the grounds that a person had failed to produce all of the documents sought, had not answered question pursuant to section 5, or had provided false or incomplete responses. Under section 9, the director had the power to require a person to attend at the office to answer questions or to provide documents. Barrister John Upton QC discussed the search powers of the Serious Fraud Office, focusing on the case of A Firm of Solicitors v District Court at Auckland [2004] 3 NZLR 748 (HC) and [2006] 1 NZLR 586 (CA). He said that, in both the High Court and the Court of Appeal, a search warrant issued at the request of the Serious Fraud Office was held to be invalid. As a result, the seizure of the material by the office was unlawful.

Mr Upton said that section 24 of the Serious Fraud Office Act specifically preserved legal professional privilege and gave statutory provision to this basic common law principle. The Court of Appeal in A Firm of Solicitors had laid down guidelines for search warrant applications in cases in which legal professional privilege was an issue. The guidelines included a requirement that appropriate legal advisers be involved in the preparation of warrant applications, the need for careful drafting of the application and supporting affidavits so that the issuing judge had a clear picture of the alleged criminal offending, and the filing of a memorandum of counsel setting out the legal issues on both sides. Appropriate conditions needed to be formulated to ensure the protection of privileged material and it might be necessary to have an independent lawyer present at any search to report back to the issuing judge on the conduct of the search. Mr Upton said that he had initially thought that such a prescriptive approach would be unduly burdensome in practice, but such concerns might be unjustified. Commerce Commission assistant general counsel, enforcement, Liesbeth Koomen, said that the sophistication, experience and

expertise of the commission had grown over the past five years. Through several high-profile wins, it had established a reputation for having a “bite as bad as its bark,” and had generated much greater awareness of competition rules than had previously been the case.

“The commission does not hide behind a shroud of smoke or mist. Our door is always open.” “That reputation enables us to grow into the role of “influencer” of behaviour of companies and individuals by reducing their incentives to break the law. We now have clear co-operation policies and severe sanctions in place, which provide you and your clients with a transparent and certain process.” Ms Koomen said that the commission had a targeted enforcement approach against cartel conduct, misleading behaviour, abuse of process, nondisclosure and unreasonable fees in continued over...

Demystifying the Regulators - Tips for Assisting Clients continued consumer finance. Targeting cartels was the top priority as cartel violations represented the most egregious anti-competitive behaviour, harming economic efficiency and consumers without any compensating economic benefit. She said that cartels were alive and well in New Zealand, with the cases being seen by the commission covering an amazing range of industry sectors. Cases currently being investigated by the commission affected energy and transportation infrastructure sectors and the health sector. Cartels affected building costs, office supplies, packaging and inputs into basic industrial processes. “The commission does not hide behind a shroud of smoke or mist. Our door is always open and we encourage parties to come to us early to discuss a proposed merger or seek immunity. Working with the commission to resolve an investigation may not be your client’s finest hour, but can see a speedier resolution of your matter and reduced penalties. Our processes and procedures are publicly available on our website and parties can come to us having already gleaned a good understanding of our approach and expectations.” Wilson Harle senior associate, Gary Hughes, provided a defence counsel perspective in relation to dealing with the Commerce Commission. He noted that, from July 2009, participants in Australian cartels faced the prospect of jail sentences, with a maximum penalty of up to 10 years’

imprisonment coming into force. There would now be pressure on New Zealand to follow suit by introducing such penalties. Mr Hughes outlined trends in the way in which the commission was operating, noting that it was making increased use of Commerce Act notices for documents and interviews and search warrants. Multiple charges were being laid for each recorded repetition of a misleading statement, and the commission was chasing individual executives and leading class action recoveries. Record penalties were also being imposed – for example, $1.325 million in the ANZ National Bank credit card foreign currency fees case in 2006. He observed that such cases were difficult to settle as they involved high stakes and the commission played hard ball. Typically, pre-trial issues were time-consuming and there were large volumes of paper and emails to traverse to establish defences or to disprove liability. Business continuity issues could arise if computer servers or mobile phones were cloned and frozen. Mr Hughes said that litigation was likely to be complex, issues could arise in relation to corporate as opposed to individual representation, and expert witnesses were normally required. In relation to search warrants, he said that lawyers needed to check their validity. Good management of the staff on site at a time of crisis was crucial. Businesses had a duty to assist the

commission, but the lawyer’s role was to ensure that limits were respected and that privilege was observed. Copies and a schedule of the items taken should be made. A debriefing should be held after the warrant had been executed. Mr Hughes discussed section 98 (c) compulsory interviews, advising that counsel should prepare clients but avoid “coaching” them. Lawyers should also consider practical issues such as tape recordings and transcripts. In relation to section 98(a) or (b) document notices, he said that emails and documents should be collected and quarantined. The named person must respond, but checks should also be done to see who else held relevant material. Dialogue should be maintained with commission staff. Securities Commission director, John Mulry, outlined the scope of the commission’s work, noting that it included market surveillance and enforcement, oversight and supervision, exemptions and authorisations and international cooperation and recognition. He said that the commission’s statutory role relating to stock exchanges had strengthened since 2002. The NZX was the front-line regulator, while the commission was the statutory regulator. The commission’s role was to conduct oversight of NZX’s performance of its role in relation to the supervision of market participants. It needed to be satisfied that NZX was taking appropriate steps to exercise its discretion in an informed and timely manner. Mr Mulry said that the commission authorised trustees and statutory supervisors, futures dealers and exchanges and electronic transfer systems. Its enforcement powers included authority to ban offer documents, to carry out inspections, to conduct formal inquiries and to summons people and documents. It could also bring court actions for breaches of securities’ laws, insider trading, market manipulation, or failure to comply with continuous disclosure requirements.

BAR CHAT New NZBA Members

Mark Colthart’s Mission for Mercy

The Bar Association welcomes the following new members to the independent bar and/or the Association:

Auckland barrister Mark Colthart is running in this year’s Auckland Marathon on November the 1st raising funds for Mercy Hospice Auckland.

AUCKLAND/ NORTHLAND:

Michael Bos, Suzanne Clark, Gary Earley, Toby Futter, Paul Heaslip, Natalie Quirke, Darrell Ratima, Stuart Ryan, Nicholas Silich, David Towle, Anna Zhou.

WELLINGTON:

Alison Douglass, Stephen Iorns

CHRISTCHURCH: Carolyn Bull, Melanie Jones, Rebecca Kennan, Pru Steven WAIKATO/ Joseph Chand, Jane Greenhill BAY OF PLENTY: OVERSEAS:

Chowdhury Azad

NZBA Council meetings and events Members should feel free to contact any of the Council members – or the Association – with any matters they would like raised on their behalf at future Council meetings.

Mark’s personal connection with Mercy Hospice is that Mark’s mother, who passed away in April this year, was a long term resident of Mercy. He says that the care and support the staff of Mercy provided to his family during his mother’s illness was incredible. “They supported us during the most difficult time, and cared for Di with great dignity and compassion. We owe them a great debt of gratitude.” Although time is secondary to actually finishing the marathon distance, Mark hopes to better his time from last year of 4 hours 25 minutes. His family has pledged $20.00 to Mercy for every minute he can beat his 2008 time by. To support Mark and Mercy Hospice visit http://www.fundraiseonline. co.nz/MarkColthart/

Mark with his boys Charlie (Spiderman) and Max crossing the finish line.

2009 Council Meetings and Events DATE

EVENT

VENUE

Advocacy and Courtroom Practice - The Duties of Counsel 11-13 September

Launch of the NZBA Equitable Briefing Policy

Wellington

NZBA Annual Conference 12 September

NZBA Annual General Meeting

Wellington

Civil Litigation – Beyond the Crisis 24 September

October (TBC)

A follow up conference to the very successful Civil Litigation in Crisis - What Crisis? conference Take the Lead and Shape Your Future

A special seminar for junior/intermediate Litigators

Auckland

Hamilton

22 October

Council Meeting

Wellington

03 December

Council Meeting

Auckland

WHAT MEMBERS NEED TO KNOW Annual General Meeting of the New Zealand Bar Association The Annual General Meeting of the New Zealand Bar Association will be held on Saturday, 12 September 2009 commencing at 5.30pm in the Grand Space located on level two of the Holiday Inn Hotel, 75 Featherston Street, Wellington, New Zealand. The relevant AGM papers will be provided at the meeting prior to its commencement.

Election of Council Members For 2009-2010 This year the number of candidates for the office of members of the Council was the same as the number of vacancies. Therefore, there is no election. The President of the Association shall declare those nominated to be elected at the AGM. The existing Council members will continue to serve until then.

www.nzbar.org.nz Phase one of the NZBA new website is now complete. There are some wonderful new features to the new website. Members can register and log in to the website to view and change their individual contact details and public profile online. Members can request instructions on how to log-in to the new website from the Executive Director at nzbar@nzbar.org.nz

Still to comeâ&#x20AC;Ś Phase two will see the introduction of credit card payment facilities and online events bookings. Work is currently underway with the second stage and we anticipate a release date of March 2010.

Members, remember to keep your contact details up to date, to ensure you receive regular communications from the Association. 10 12 8

UPCOMING CONFERENCES & SEMINARS NEW ZEALAND The New Zealand Bar Association, the Legal Research Foundation and the University of Otago Legal Issues Centre jointly present Civil Litigation - Beyond the Crisis Stamford Plaza Hotel in Auckland on Thursday, 24 September 2009 Common law jurisdictions throughout the world have recognised that their civil litigation systems are failing to meet the needs of their users. The focus of these concerns must now move towards finding ways to improve those systems and achieve solutions. In New Zealand, a significant step in this process was the very successful New Zealand Bar Association / Legal Research Foundation Conference held in February 2008 “Civil Litigation in Crisis - What Crisis”. That seminar generated lively debate about the problems faced by civil litigants, and led to wide-ranging suggestions for improvement of the civil litigation system.

Fogarty, Chairperson of the Rules Committee, will summarise changes to the High Court Rules that have been implemented or are proposed, including the fast track, changes to the written briefs regime, and proposed discovery reforms. The seminar will include commentary and discussion from senior practitioners, led by Jim Farmer QC, Julian Miles QC and Ralph Simpson, Partner, Bell Gully. All members of the independent bar and civil court practitioners are encouraged to attend this conference and participate in the debate about shaping our civil justice system to better serve the needs of citizens and the business community. The conference will be held at the Stamford Plaza Hotel in Auckland on Thursday, 24 September 2009, with registration from 12:30pm and the seminar presentations commencing at 1pm. Registrations are being managed by Barbara Relph at the Legal Research Foundation. Barbara can be contacted directly on barbara@legalresearch.org.nz or (09) 309 9540.

A further half-day seminar is now scheduled to take place in Auckland on Thursday 24 September 2009 to continue the momentum for progress, “Civil Litigation - Beyond the Crisis?”. This conference, held jointly with the New Zealand Bar Association, the Legal Research Foundation and the University of Otago Legal Issues Centre will focus on: • International experience with access to justice issues and the lessons we can learn from overseas reform • The preliminary results of a recent survey by Otago University’s Legal Issues Centre about New Zealand’s civil court system, a survey which elicited more than 1900 responses • Changes to New Zealand civil procedure - the introduction of a fast track, changes to the written briefs regime, proposed discovery reforms being considered by the Rules Committee, and debate about further reform. The keynote speaker is Professor Dame Hazel Genn. Providing comment will be the Honourable Geoff Davies. The Honourable Justice John Hansen, consultant to the Legal Issues Centre, and Dr Saskia Righarts, postdoctoral research fellow at the University of Otago Legal Issues Centre, will report on the survey results about New Zealand’s civil court system. The Honourable Justices Tony Randerson, Chief High Court Judge, and John

UPCOMING CONFERENCES & SEMINARS INTERNATIONAL IBA Annual Conference Madrid, 4 - 9 October 2009

The IBA Annual Conference is the premier opportunity for lawyers from around the world to meet and participate in key discussions regarding legal developments in various jurisdictions. The conference will offer more than 150 working sessions covering all areas of practice and addressing current industry-wide issues. The Rule of Law Symposium on Friday 9 October will present a variety of distinguished speakers and interactively discuss the Rule of Law around the world and how best to promote adherence to its principles. To find out more and to register please visit www.int-bar.org/conferences/Madrid2009/.

Australian Lawyers Alliance National Conference Queensland, 22 - 24 October 2009

The annual Australian Lawyers Alliance National Conference will be held at the Hyatt Regency, Sanctuary Cove, Queensland. Details can be downloaded from the website: www.lawyersalliance.com.au/events

The Law Association for Asia and the Pacific Conference Vietnam, 9 - 12 November 2009

Co-hosted by the Ho Chi Minh City Bar Association, LAWASIA’s 22nd conference will take place at the Rex Hotel, an iconic international hotel in the heart of Ho Chi Minh City, Vietnam. The conference is of a general nature with its programme offering regional views on a wide range of legal areas. Former Australian High Court Judge, Honourable Michael Kirby, will deliver a keynote address on Day 1 of the conference followed by the GL Sanghi memorial lecture featuring former Attorney General of India, Mr Ashok Desai on Day 2. These sessions are just two of the 30 topical sessions that will take place. The conference also runs in conjunction with the Conference of Chief Justices of Asia and the Pacific. Early bird registration rates now apply. Detailed and up to date information on the programme and speakers is available from the website www.lawasia.asn.au/Lawasia_conference_2009

The World Bar Conference Sydney, 1 - 5 April 2010

The 5th World Bar Conference will be held in Sydney, between Thursday, 1 April and Monday, 5 April 2010. The conference theme will be “The New Legal Challenges: Global Warming and Financial Freeze”. It will commence with a reception at Opera Point of the Sydney Opera House overlooking Sydney Harbour. The business sessions will be held in the ballroom of the Sheraton on the Park Hotel, Sydney and will be conducted on Saturday, 3rd and Sunday, 4th April. To find out more visit www.worldbaronline.com/images/stories/conferences/Sydney2010/world_bar_conf_brochure.pdf

NZBA Council Summary of Meeting Minutes Minutes of the Council Meeting of the New Zealand Bar Association held on Friday, 1 May 2009 at 10:00am in Christchurch. Mr Carruthers opened the meeting and welcomed Mr Stuart Pilkinton, President of the ACT Bar Association, to the meeting. Mr Carruthers tabled progress in relation to the appointment process for Senior Counsel. Mr Pilkinton explained the ACT process – whereby appointment of Senior Counsel was made by the President of the Bar Association in consultation with professors and judges – and said he would forward the criteria and forms to the Council. Mr Carruthers communicated to the Council feedback received from the Rules Committee on the NZBA submission on written briefs. He added that Justice Fogarty had commented that the final paragraph of the NZBA submission provided a

sensible combination of written briefs and oral evidence. Mr Carruthers informed the Council of Lord Justice Jackson’s commission by the Lord Chancellor to review the costs regime in the UK. Part of the review process included discussions with both the NZBA and NZLS. Sir Rupert’s preliminary report would be available in May and would include a chapter on New Zealand. In the absence of Mr Johnston, Mrs Pearson explained and answered questions of detail relating to the financial accounts. A draft budget for the 2009/10 year would be prepared following the roll-over of the general ledger, which would occur after the return of the 2008/09 financial accounts from the accountant. Unpaid membership fees were cleared on 31 March 2009 and the membership ledger had been successfully rolled over on 1 April 2009. The financial reports were approved by T HughesJohnson and seconded by J Eaton. Mrs Pearson updated the Council on the concept of a training video on courtroom etiquette which could be

streamed on the Association’s new website. The Council was in favour of an online training library and Mrs Pearson was asked to draw up a framework and budget. The Council considered and voted in favour of becoming a supporting organisation of the AMINZ conference “Building Your Profession” in Wellington on 6-8 August. No financial commitment would be involved. As a supporting organisation the Association would receive the following benefits: NZBA logo printed on the AMINZ conference brochure; NZBA website hyperlink from the AMINZ website; members’ rate offered to NZBA attendees. Ms Dean and Mrs Pearson briefed the Council on a proposed seminar session with J Anderson Little. Reference was made to Mr Little’s book, published by the American Bar Association, “Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes” which forms the basis for his half and full day workshops. Mrs Pearson explained that Mr Little would continued over...

2008-2009 Council contact details COLIN CARRUTHERS QC - President Ph: 0064 4 471 4275 Fax: 0064 4 471 1195 P O Box 305, Wellington crc@crcarruthers.co.nz TERRY SISSONS - Vice President - Wellington Ph: 0064 4 471 1380 Fax: 0064 4 499 8795 P O Box 23063, Wellington terry.sissons@xtra.co.nz KEN JOHNSTON - Treasurer Ph: 0064 4 471 2727 Fax: 0064 4 499 4620 P O Box 5058, Wellington k-johnston@clear.net.nz JOANNE VERBIESEN Ph: 0064 4 917 1083 Mob: 0064 21 616 711 P O Box 117, Wellington 6140 joanne.verbiesen@stroutstreet.co.nz MIRIAM DEAN QC - Vice President - Auckland Ph: 0064 9 377 8959 Fax: 0064 9 377 8960 P O Box 4111, Auckland miriam@barrists.co.nz STEPHEN MILLS QC Ph: 0064 9 307 9820 Fax: 0064 9 307 1572 P O Box 4338, Shortland Street, Auckland stephen.mills@shortlandchambers.co.nz KATE DAVENPORT Ph: 0064 9 307 8787 Fax: 0064 9 307 8788 P O Box 141, Shortland Street, Auckland kate@katedavenport.co.nz GRAHAM KOHLER Ph: 0064 9 309 1769 Fax: 0064 9 377 6956 P O Box 4338, Auckland kohler@shortlandchambers.co.nz ANTHONY ROGERS Ph: 0064 9 373 3196 Fax: 0064 9 377 4850 P O Box 1771, Auckland agvr@xtra.co.nz CHRISTOPHER GUDSELL QC - Vice President Regions Ph: 0064 7 839 3290 Fax: 0064 7 834 0587 P O Box 19085, Hamilton ctgudsell@xtra.co.nz ELLIOT HUDSON Ph: 0064 7 839 6644 Fax: 0064 7 839 6610 P O Box 19252, Hamilton elliothudson@xtra.co.nz JONATHAN EATON -Vice President - South Island Ph: 0064 3 372 3466 Fax: 0064 3 365 2592 P O Box 13-868, Christchurch j.eaton@.bridgesidechambers.co.nz TONY HUGHES-JOHNSON QC Ph: 0064 3 365 2158 Fax: 0064 3 365 7273 P O Box 286, Christchurch achj@xtra.co.nz JOHN MATTHEWS Ph: 0064 3 409 2010 Fax: 0064 3 409 2012 PO Box 1770, Queenstown jgmatthews@xtra.co.nz 14 16

be speaking at the AMINZ conference in August and would be available to the Association for a workshop designed around the needs of our members. The Council voted in favour of the proposed seminar. Mr Gudsell reported on the Professional Indemnity Insurance position. The focus of the discussion was on the dissatisfaction of the provision of support services to the membership, to Council and to the Executive by Aon; the increased premiums and late notification. Ms Dean and Mr Mills reported on their meeting with Marsh and the proposed Marsh/NZBA branded programme, in particular, the sourcing of underwriters; premiums; support services – including risk management seminars, sponsorship of Association activities and quarterly reports; a proposed single renewal date for members; increased revenue share and ownership of data. The Council resolved to adopt a change of broker from Aon to Marsh. Moved by T Hughes-Johnson and seconded by S Mills. Ms Dean provided an update on the concept of a court ordered mediation pilot scheme and it was noted that the Association had written to the Minister of Justice to the effect that it was working closely with the consultative group and was hopeful that funding would be available to enable the pilot scheme to be implemented. Mr Carruthers advised that the Attorney General had expressed his support of the initiative also. Ms Dean updated the Council on the two programmes being presented in late July by Professor Raymond on “The Art of Written Persuasion”. Registrations were starting to flow in and announcements were due to appear in Law Talk, Law News and NZ Lawyer in early June. Ms Dean also provided a preliminary report on the revised programme for the NZBA/LRF half day seminar “Civil Litigation – Beyond the Crisis”. Speakers were being finalised.

Mr Sissons provided an update on the venue, accommodation and speakers for this year’s annual conference titled “Advocacy and Courtroom Practice – The Duties of Counsel”. The AttorneyGeneral would make the opening address on the duty of Counsel to cooperate in litigation and would introduce the Association’s Equitable Briefing Policy. Judge Beaumont QC, Recorder of London, would speak on advocacy in 2009 from the perspective of the judge in charge of the Old Bailey.

New Zealand Bar Association Annual Conference Wellington 12 September 2009

Advocacy and Courtroom Practice - The Duties of Counsel New Zealand Bar Association Annual Conference Wellington, 11 - 13 September 2009 The conference weekend starts on Friday evening, 11 September, with an informal dinner at Shed 5. The work programme on Saturday will be set in motion by the Attorney-General Honourable Christopher Finlayson’s address on “Counsel’s Duty to Cooperate – Achieving Efficiency and Fairness in Litigation”. The Attorney-General will also launch the Association’s Equitable Briefing Policy. Judge Peter Beaumont QC, Recorder of London, has been invited to address members on “Advocacy in 2009” - from the perspective of the judge in charge of the Old Bailey, Britain’s top criminal court. Judge

Beaumont was appointed a Circuit Judge in 1989 and sat initially at Chelmsford Crown Court. In 1995, he was appointed Senior Circuit Judge at the Old Bailey and from 2001 held the post of Common Serjeant of London. He has been sitting as an additional judge of the Court of Appeal Criminal Division since 1996 and in December 2004 was appointed Recorder of London. Justice David Baragwanath, Jim Farmer QC and Peter Davey will address the “Impact of the Evidence Act 2006 on Criminal and Civil Proceedings – Two Years On” with Judge Beaumont commenting on similar developments in the UK. The afternoon programme has Justice John Fogarty, Jan McCartney SC and Justin Smith debating the “Future of the Written Brief” followed

by Stephen Mills QC, Mary Peters and Philip Skelton exploring “Class Actions and Litigation Funding”. The formal dinner will be held at the St James Theatre and the after dinner speaker is Tom Scott. As part of the conference programme, delegates are invited on the Sunday to join Judge Peter Beaumont for breakfast after which the conference weekend concludes. There is still time to register for this not-to-be-missed conference. A copy of the conference programme and registration form can be obtained from the Executive Director on (09) 3034515 or email monique.pearson@nzbar.org.nz or downloaded from the Association’s website at www.nzbar.org.nz